James Madison Papers

From James Madison to John Armstrong, Jr., 8 February 1808

Department of State February 8th. 1808


Your letters and communications by Dr. Bullus were duly delivered on the [  ] day of [  ]. The same conveyance brought a copy of the sentence pronounced by the French prize Court in the case of the Horizon, giving a judicial effect to the Decree of Novr. 21. 1806, as expounded in the answer of Mr Champagny to your letter of the [  ].

Whilst the French Government did not avow or enforce a meaning of the Decree of Novr. 1806, in relation to the United States, extending its purview beyond the municipal limits, it could not in strictness be regarded as an infraction either of our neutral or conventional rights, and consequently did not authorize more than a demand of seasonable explanations of its doubtful import, or friendly expostulations with respect to the rigor and suddenness of its innovations.

The case is now essentially changed: A construction of the Decree is avowed and executed which violates as well the positive stipulations of the Convention of Sept. 30 1800, as the incontestable principles of public law. And the President charges you to superadd, to whatever representations you may have previously made, a formal remonstrance in such terms as may be best calculated either to obtain a recall of the illegal measure, so far as it relates to the United States, or to have the effect of leaving in full force all the rights accruing to them from a failure to do so.

That the execution of local laws against foreign nations on the high seas, is a violation of the rights of the former and the freedom of the latter, will probably not be questioned. A contrary principle would in fact imply the same exclusive dominion over the entire ocean as is enjoyed within the limits of the local sovereignty, and a degradation of every other nation from its common rights and equal rank.

If it be contended that the Decree, as a retaliation on the other belligerent, at the expence of neutral nations, is justified by a culpable acquiescence in the prior measures of that belligerent operating thro’ neutrals, you will be able to deny such acquiescence, and to urge moreover that, on every supposition, the retaliating measure could not be justly enforced in relation to neutrals without allowing them at least a reasonable time for chusing between due measures against the prior wrong and an acquiescence in both. The copy of the representations to the British Government thro’ its Minister here, on the subject of its orders of Jany. 1807, will at once disprove an acquiescence on the part of the United States, and explain the grounds on which the late extension of the French Decree of Novr. 1806, is an object of just remonstrance.

The conduct of the French Government, in giving this extended operation to its decree, and indeed in issuing one with such an apparent or doubtful import against the rights of the sea, is the more extraordinary inasmuch as the inability to enforce it on that element exhibited the measure in the light of an empty menace, at the same time that it afforded pretexts to her enemy for severe retaliations for which ample means are found in her naval superiority.

The accumulated danger’s to which the illegal proceedings of the belligerent nations have subjected the commerce and navigation of the United States, have at length induced Congress to resort to an Embargo on our own vessels, as a measure best fitted for the crisis, being an effectual security for our mercantile property and mariners now at home and daily arriving, and at the same time neither a measure, nor just cause of war. Copies of this act were soon after its passage, transmitted to Mr Pinkney, with an authority to assure the British Government that it was to be viewed in this light; and that it was not meant to be the slightest impediment to amicable negotiations with foreign Governments. He was requested to avail himself of an opportunity of communicating to you and Mr Erving this view of the subject, and I hope that you will have been thence enabled to present it to the French Government. Not relying however on that indirect opportunity, I send by this another copy of the act, with an instruction from the President, that you make it the subject of such explanations as will guard against any misconception of the policy which led to it. It is strictly a measure of precaution required by the dangers incident to external commerce, and being indiscriminate in its terms and operation towards all nations, can give no just offence to any. The duration of the act is not fixed by itself; and will consequently depend on a continuance or cessation of its causes in a degree sufficient in the judgment of the Legislature to induce or forbid its repeal. It may be hoped that the inconveniences felt from it by the belligerent nations may lead to a change of the conduct which imposed the inconveniencies of it on ourselves. France herself will be a sufferer, and some of her allies far more so. It will be very agreeable to find in that consideration, and still more in her sense of justice, a sufficient motive to an early manifestation of the respect due to our commercial rights. The example would be worthy of the professions which she makes to the world on this subject.

February 18th Since the above was written, I have been under a degree of indisposition which has suspended the proposed continuation of it, and which now will oblige me to be very brief; the more so, as the vessel has been some days detained, which was engaged for the special purpose of conveying public despatches and private letters to Europe.

The delay has enabled me to inform you that Mr Erskine a few days ago communicated by instructions from his Government its late Decrees of Novr. 11, and those forming a sequel to them. The communication was accompanied with assurances that much regret was felt by his Britannic Majesty at the necessity which the conduct of his enemy had created for measures so embarrassing to neutral commerce, and that His Majesty would readily follow an example of relinquishing such a course, or even of making relaxations pari passu with his enemy.

Whether these intimations have any reference to the distinction between such parts of the French decree as operate municipally on shore, and such as operating on the high seas, violate the rights of neutrals, or to a distinction between the former restriction and the late extension of the Decree with respect to the United States, Mr Erskine did not seem authorized to say. The probability is that neither of these distinctions entered into the views of the British Cabinet. But it is certainly neither less the duty nor the true policy of the Emperor of the French so to vary his decree as to make it consistent with the rights of neutrals and the freedom of the seas, and particularly with his positive stipulations to the United States. This may be the more reasonably expected, as nothing can be more clear, as has been already observed, than that the effect of the Decree, as far as it can be carried into effect, would not be sensibly diminished, by abolishing its operation beyond the limits of the territorial Sovereignty.

In remonstrating against the injustice and illegality of the French Decree, I am aware that you may be reminded of antecedent injuries to France and her allies thro’ British violations of neutral commerce. The fact cannot be denied, and may be urged with great force, in our remonstrances against the orders to which Great Britain has given a retaliating character; since the French Decree might on the same ground, be pronounced a retaliation on the preceding conduct of Great Britain. But ought the legitimate commerce of neutrals to be thus the victim and the sport of belligerents contesting with each other the priority of their destructive innovations; and without leaving, either of them, to neutrals, even the opportunity or the time for disproving that culpable acquiescence which is made the pretext by both for the wrongs done to them? And I must repeat that apart from all questions of this nature the French Decree, or at least the illegal extensions of it to the United States remain chargeable with all the impolicy which has been pointed out.

I find by accounts from Hamburgh, Bremen, Holland and Leghorn, that the trade and property of our Citizens have been much vexed by regulations subaltern to those of the original Decree of Novr. 21. 1806. How far the complaints are founded on proceedings violating our public rights, or on such as are unfriendly and inequitable towards our Citizens who have placed their property within these jurisdictions, you will be able to decide better than we can do at this distance; and the President refers to your own judgment the kind of representation to the French Government which those and other analagous cases may require.

Mr. Rose charged with a special mission to the United States for adjusting and making the satisfaction required for the outrage on the chesapeake Frigate, has been about a month here. He opened his mission with a demand, preliminary to the negotiation, which was inadmissible. Much time and pains have been spent in informal experiments to overcome that difficulty at the threshold, and others known to be within the negotiation itself. These experiments are giving way to formal and direct discussions, which do not under the instructions by which he professes to be restricted, promise any definitive and satisfactory result.

It was my purpose to have given greater extent to this communication, and particularly to have touched some other points in your last letters. But I find my health scarcely equal to the task already performed; and I am unwilling to prolong the detention of the vessel which has been ready for some time to depart with the numerous letters from our merchants to their correspondents, for carrying which she was in great measure employed. As she will return to L’Orient from Falmouth, where she will wait 8 or 10 days only, in order to bring back Lieut Lewis the bearer of this, I hope you will dispatch him in due time, and that he will bring from you communications equally ample and agreeable.

The inclosed copy of a letter from the Secretary of War to me, together with the papers spoken of in it, will enable you to reply to the Minister of War in answer to his letter of the 15th. Sept. last, a copy of which you sent me. I have the honor to be &c

James Madison

DNA: RG 59—IM—Instructions to Ministers.

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